1. Does Taking an Audio Recording Constitute a Crime?
Taking an audio recording without authorization primarily gives rise to three distinct types of criminal offenses under the Turkish Penal Code (TPC):
- Violation of the Confidentiality of Communication (TPC Article 132)
- Violation of the Privacy of Private Life (TPC Article 134)
- Eavesdropping and Recording Conversations Between Individuals (TPC Article 133)
A) Violation of the Confidentiality of Communication
For this crime to occur, communication elements between individuals must be recorded. Two conditions must be met for the offense of violating the confidentiality of communication to materialize. First, the communication must take place between specific and limited numbers of persons. Second, the parties involved must desire the communication, its content, and its existence to remain confidential.
This crime can be committed by one of the parties to the communication or by third parties. While a party to the communication recording the conversation does not, in itself, constitute the crime of violating communication confidentiality, if said party discloses, shares, or disseminates the recording, the offense stipulated under Article 132/2 of the TPC comes into existence.
B) Violation of the Privacy of Private Life
This crime, under Article 134 of the TPC, is mostly committed by recording audio or visual images without authorization. For this crime to occur, an individual’s private sphere of life must be interfered with by another person.
C) Eavesdropping and Recording Conversations Between Individuals
This crime, governed by Article 133 of the TPC, is committed when non-public conversations between individuals are listened to, recorded with an audio recording device, or disclosed without their consent. For this crime to materialize, there must be an unlawful interference in the private communication sphere that individuals do not wish to be known by others.
However, recordings made by a person without any other means, solely for the purpose of documenting a sudden crime directed against themselves (e.g., threats, insults, etc.) to present as evidence to competent authorities, constitute an exception to this rule.
2. What Are the Penalties for Taking Audio Recordings?
The penal sanctions vary depending on the specific characteristics outlined above. Pursuant to Article 132 of the Turkish Penal Code:
• Non-Consensual Recording: Any person who violates the confidentiality of communication between individuals shall be sentenced to imprisonment from one year to three years. If this violation of confidentiality is committed by recording the contents of the communication, the penalty to be imposed shall be increased by one fold.
• Unlawful Disclosure: Any person who unlawfully discloses the contents of communication between individuals shall be sentenced to imprisonment from two years to five years.
• Public Disclosure by a Participant: Any person who publicly discloses the contents of communications made with themselves without the consent of the other party shall be sentenced to imprisonment from one year to three years.
3. Under What Circumstances and Purposes Does Audio Recording Possess a Lawful Quality?
For an individual’s act of resorting to audio recording to be considered lawful, the condition of a ‘state of necessity’ must be present. Four core criteria must exist for a state of necessity to materialize:
1. Inability to Reach Authorities: The victim of an unlawful attack has no immediate opportunity or possibility to reach competent law enforcement or judicial authorities.
2. Sudden and Unexpected Attack: The attack directed at the individual or their immediate circle must occur unexpectedly, suddenly, or by chance.
3. Risk of Evidence Loss: The recording must be conducted strictly to preserve evidence that emerges during the unlawful attack and is at immediate risk of disappearing.
4. Protection of Self or Immediate Circle: The act of recording must target an offense directed at the recorder or their close relatives. The fundamental objective here is to make an audio recording to prevent an unjust attack against oneself or one’s family.
4. Does Taking Audio Recordings Within a Marital Union Constitute a Crime?
The principle of privacy of private life is safeguarded and enshrined in Article 20 of the Turkish Constitution. The restriction of privacy is only permissible under the specific conditions prescribed by the Constitution; the mere fact that parties are in a marital union does not remove this constitutional right.
Spouses interfering with each other’s private spheres of life within a marital union may fulfill the elements of the crime of ‘violation of privacy.’ However, if the circumstances under which the parties find themselves constitute a ‘state of necessity’ pursuant to Article 25, Paragraph 2 of the TPC, criminal liability will not arise due to the existence of a justification grounds.
| “The right to privacy of private life, which is tied to the person and their personal development, does not completely disappear with marriage. The fact that parties are married and share the same residence, giving them easy access to each other’s personal belongings and private life spheres, cannot be interpreted as allowing spouses to constantly monitor and audit each other without limits. However, in suddenly developing situations where a person has no possibility of obtaining evidence again and no opportunity to apply to competent authorities—for example, when a crime is being committed against them (such as sexual assault, insult, threat, slander, or blackmail) or to prevent an unjust attack targeting themselves or their family unit that damages their honor—actions taken without the knowledge and consent of the attacking party to read private information, listen to, monitor, or record speech, communication contents, or private audio and video, or to record, seize, and disseminate personal data strictly for the purpose of preserving perishable evidence and submitting it to competent authorities cannot be accepted as unlawful, nor can it be said that the person acted with the awareness of committing an unlawful act.” — Court of Cassation, 12th Criminal Division, Main No: 2019/4369, Decision No: 2019/8633 |
5. Does Recording an Ongoing Phone Call Constitute a Crime?
Recording a phone conversation at the time it is taking place does not inherently constitute the crime of violating communication confidentiality. In the case of unauthorized audio recording, one of the following two circumstances must be present for this crime to occur:
• Exposure/Disclosure: The audio recording obtained without authorization must be exposed, shared, or publicly disclosed.
• Third-Party Interception: The communication elements must be recorded by a third party. If one of the active participants in the dialogue records the phone call, it does not constitute the offense of violating communication confidentiality.
6. Security Cameras Recording Audio in the Workplace and Unlawful Evidence in Light of Court of Cassation Decisions
In disputes arising from labor law, the legal nature of digital evidence submitted by parties to prove their claims directly impacts the outcome of the litigation.
In a concrete case examined by the Court of Cassation, an employee working as a market attendant and driver at a gas station had his employment contract terminated without severance pay on the grounds that he insulted management representatives. The audio recording in question was obtained via a security camera that recorded both video and audio. The employer submitted the audio data recorded by the security camera located in the workplace store as evidence to court to prove its claim of rightful termination. The court of first instance ruled that the termination was based on rightful cause by relying on the negative expressions in the audio transcripts and rejected the employee’s compensation claims.
However, upon appellate review, the Court of Cassation focused on the ‘manner in which the evidence was obtained’ rather than the content of the message or words. In evaluating the evidentiary value of the audio recording submitted by the employer, the Court of Cassation relied on the following fundamental criteria:
A) Lack of Information and Consent: It was understood from the scope of the case file that employees were not informed in advance that audio recordings were being made at the workplace, nor did the employee provide explicit consent for this processing.
B) Legitimate Interest Balance: It was stated that the employer failed to demonstrate the existence of a legitimate and justified interest that would necessitate continuous audio recording in the workplace.
Based on these grounds, the Court of Cassation held that audio recordings obtained without consent and covertly constitute ‘unlawful evidence’ and cannot be taken as the basis for a judgment pursuant to the constitutional principle of privacy of private life. Upon exclusion of this unlawful evidence from the file, the employer was deemed unable to prove the rightful termination grounds asserted under Article 25/II-d of Labor Law No. 4857. Consequently, considering that the employee was entitled to severance and notice pay, the Court of Cassation reversed the local court’s rejection judgment. (Court of Cassation, 9th Civil Division, Dated 01.06.2020, Main No: 2020/1482, Decision No: 2020/5244)
7. Precedental Decisions Regarding the Examined Issues
Case 1: Court of Cassation 12th Criminal Division — Dated 05.10.2022, E. 2020/1058, K. 2022/6239
Upon appeal by the participant against the acquittal judgment of the defendant regarding the crime of eavesdropping or recording non-public conversations between individuals with a device, the file was examined and reviewed:
In the incident where the defendant, a specialist in Otolaryngology at a state hospital, had administrative disputes and hostility reaching judicial authorities with the participant (who served as deputy chief physician at the same hospital), secretly recorded daily routine conversations during a meeting in the participant’s office to document allegations of psychological harassment (mobbing) by the hospital management and participant, allegedly committing the crime under TPC Art. 133/1;
According to the CD listening transcript dated 23.03.2015 and the file scope, the parties to the face-to-face conversation recorded by the defendant were solely the defendant and the participant. Since the defendant recorded a conversation to which they were a party, the statutory elements of the crime under TPC Art. 133/1 were not formed. Furthermore, the conversations regarding disputes between the defendant and participant were not deemed to fall within the participant’s private sphere or violate privacy. Thus, no inaccuracy was found in the local court’s acquittal decision pursuant to CMK Art. 223/2-a.
DECISION: The participant’s appellate objections were rejected, and the acquittal judgment was AFFIRMED.
Case 2: Court of Cassation 12th Criminal Division — Dated 13.01.2021, E. 2020/851, K. 2021/220
| “In the reviewed file, regarding the conviction judgments established against the defendant on 03.10.2012 for eavesdropping/recording conversations and blackmail committed on 03.08.2011… The act of the defendant recording face-to-face conversations with the participant should be evaluated under Article 134 (Violation of Privacy) rather than Article 133/1. Considering that the statements ‘find foreign women, let’s party’ made in a non-public environment fall within private life, recording such private conversations constitutes the crime of violating privacy under TPC Article 134/1-2. Establishing a conviction under the wrong qualification required REVERSAL…” — Court of Cassation 12th CD |
Case 3: Court of Cassation 4th Civil Division — Dated 15.01.2018, E. 2016/3265, K. 2018/73
According to available evidence, during criminal proceedings where the defendant was tried and the plaintiff acted as counsel, the conversation held in the plaintiff’s law office was recorded by the defendant without permission and submitted to court as evidence. This act constitutes an attack on the plaintiff’s personal rights. Therefore, the court should have awarded appropriate non-pecuniary damages in favor of the plaintiff considering the development and nature of events. The decision was REVERSED on this ground.
Case 4: Court of Cassation 4th Criminal Division — Dated 21.12.2015, E. 2013/28113, K. 2015/40428
As clarified in Assembly of Criminal Chambers Decision No. 2011/187-131: When a person records conversations regarding a crime being committed against them under sudden circumstances where there is no possibility to obtain evidence again or apply to competent authorities, the recording must be accepted as lawful. Otherwise, evidence would be lost permanently. Such a lawful act cannot be deemed an interference with private life, as the primary purpose is to prevent evidence from disappearing before submission to authorities.
However, evidence obtained through pre-planned methods, staged scenarios, provocation, or entrapping the suspect/defendant cannot be claimed to be lawful. In light of these principles, the court must thoroughly clarify when, under what conditions, and in what context the recording was made, whether technical alterations exist, and examine whether the evidence is prohibited before establishing a verdict. Due to incomplete examination and insufficient reasoning, the judgment was REVERSED unanimously.